Employment

Requesting parental leave for the birth or adoption of a child

Non residents

Residents

Parental leave enables the parents of a young child to take a break from their professional career or reduce their working time in order to devote themselves more fully to the education of their child. They are guaranteed to be able return to their previous jobs at the end of the leave.

The parent can request:

either the first parental leave: to be taken following the maternity or adoption leave;

or the second parental leave: to be taken before the child's 6th birthday (the 12th birthday for adopted children).

Parental leave is only granted once per child.

If one of the parents renounces their right to parental leave, the leave cannot be transferred to the other parent in order for the latter to take 2 parental leaves.

During parental leave, the parent is entitled to an allowance paid by the Children's Future Fund (Caisse pour l’avenir des enfants - CAE) as a replacement income.

Who is concerned

Each parent is entitled to parental leave for each of their children after the birth or the adoption of one or several children. Parents can take parental leave as long as the children have not reached the age of 6 (12 in case of adoption).

More specifically, parental leave applies to:

salaried workers, apprentices or self-employed workers;

civil servants, employees or workers (ouvriers) employed by the State, a commune or a public institution, or agents of the Luxembourg National Railway Company (Société nationale des chemins de fer luxembourgeois).

If one of the parents waives their right to parental leave, the leave cannot be transferred to their spouse to allow the latter to take two periods of parental leave.

Prerequisites

To exercise their right to parental leave, the (future) parent must:

be compulsorily registered with the Luxembourg social security

at the moment of the birth or adoption of the child(ren);

without any interruptions of more than 7 days in total, during at least 12 continuous months before the beginning of the parental leave;

if the parent is a salaried worker: have one or more employment contracts totalling at least 10 hours of paid work per week;

if the parent is a salaried worker or an apprentice: have a contract during the full period of the parental leave;

Special cases

In the case of a cessation, merger or transfer of a business, the immediate transfer of an employee to another position is not considered to be a change of employer.

How to proceed

Types of parental leave

First or second parental leave

The parent can request either:

the first parental leave, which must be taken by one of the parents immediately after the maternity or adoption leave. Failing this, the right to take the first leave is lost and the other parent may take the second parental leave only;

or the second parental leave, which must be taken:

in the case of child birth, before the child's 6th birthday;

in the case of adoption:

within the 6 years following the end of the adoption leave; or

if no adoption leave was taken, the second parental leave must be taken between the date of the adoption judgment and the date of the the child's 12th birthday.

If the maternity or adoption leave is not due or has not been taken, any parental leave that might be due must be taken from:

the first day of the 3rd week following the birth; or

in the case of adoption, from the date of the adoption judgment.

Special cases:

Salaried worker during the trial period

A salaried worker whose trial period ends after the maternity or adoption leave can only request the second parental leave. Parental leave can only be requested after the end of the trial period

Single parent families

In the case of single-parent families, separated or divorced, the parent who has custody of the child may choose between the first and second parental leave. The parent does not lose the right to the first parental leave if it is not taken immediately after the maternity or adoption leave.

If both parents apply for parental leave simultaneously, they must specify in their respective applications which of the two parents is taking the first parental leave and which is taking the second. In the event of disagreement, the first parental leave will go to the person whose surname comes first (alphabetically).

If only one parent is entitled to parental leave because the other parent does not qualify for it, he or she may choose between the first parental leave and the second parental leave.

Full-time, part-time or split leave

The first and second parental leaves can be taken on a full-time, part-time or split basis depending on the number of hours indicated on the parent's employment contract and situation:

40 hours per week or self-employed:

4 or 6 months of full-time leave;

part-time leave of 8 or 12 months at 50% of the normal working hours, subject to approval by the employer;

split leave: 4 periods of one month during a maximum period of 20 months, subject to approval by the employer;

split leave: 1 or 2 half days per week during a maximum period of 20 months, subject to approval by the employer;

20 hours per week or more:

4 or 6 months of full-time leave;

8 or 12 months of half time leave, pending approval by the employer;

10 hours per week or more: full-time leave;

apprenticeship contract: 4 or 6 months of full-time leave;

parents with several employers or who are registered with the social security as salaried workers or self-employed: 4 or 6 months of full-time leave.

The monthly work time is indicated in the employment contract in force on the date where the application for parental leave is submitted to the employer. If the monthly work time changes in the 12 months prior to the parental leave, the average work time for the year in question is taken into account. It must be noted that any changes in the number of working hours requested after submission of the application for parental leave cannot be taken into account when calculating the duration of the parental leave.

Example: if a request for parental leave is submitted on 1 August 2018 and the concerned parent changed their working time from 70% to 100% on 1 March 2018, the time frame that will be taken into account to calculate the average number of monthly working hours will range from 1 August 2017 to 31 July 2018. So the parent could, for example, apply for a split leave as they work full time. However, the result obtained from calculating the average will be used for establishing the compensation of the parental leave.

It should be noted that once the parental leave has begun, the type of leave cannot be changed.

Approval/refusal of a part-time or split leave by the employer

A salaried parent who wishes to take part-time or split parental leave must define and sign a parental leave plan in agreement with their employer.

This parental leave plan:

determines the actual parental leave periods;

must be drawn up within 4 weeks from the parent's request.

After this, only changes impacting the work schedule or the calendar month are possible in agreement with the employer.

Employers who refuse to grant this type of parental leave must inform the worker by registered mail with acknowledgement of receipt within 2 weeks of the application for parental leave.

The employer then has to invite the worker to an interview within 2 weeks of the notification of refusal.

The purpose of this meeting is:

to explain the reasons for the refusal;

to offer, in writing, an alternative form to the parental leave or a different parental leave plan from the one submitted by the parent.

If no agreement is reached and no parental leave plan is signed within 2 weeks of the interview, the worker is entitled to full-time parental leave for either 4 or 6 months.

First parental leave

Form of application and deadlines

Parents who are employees or apprentices may submit their application to their employer:

parental leave split over time (in this case, the employee can suggest working time arrangements); or

part-time parental leave (in this case, the employee can suggest working time arrangements).

The employer's approval

Employers may neither refuse the first parental leave (unless the application was not submitted in accordance with legal conventions and deadlines), nor postpone it.

However, they can refuse to grant part-time or split leave. In this case, the employee must take full-time leave or waive their entitlement to it.

Second parental leave

Form of application and deadlines

Parents who are employees or apprentices may submit their application to their employer:

on plain paper;

by registered letter with acknowledgement of receipt;

at the latest 4 months before the desired start date of their parental leave.

The parent must therefore submit the application in due time given the possibility for the employer to postpone the start of the second parental leave.

The application must mention:

the phrase "parental leave to be taken before the 6th / 12th birthday of the child (second parental leave)";

the type of leave requested:

full-time parental leave; or

parental leave split over time (in this case, the employee can suggest working time arrangements); or

part-time parental leave (in this case, the employee can suggest working time arrangements).

The employer's approval

Employers cannotrefuse the second parental leave.

They may, however:

refuse to grant part-time or split leave. In this case, the employee must either take full-time leave or renounce the leave; and/or

request that it be postponed under certain conditions.

The employer must notify the employee of the decision:

by registered letter with acknowledgement of receipt;

at the latest 4 weeks after the employee's request.

Employer's request to postpone

The employer can request that the leave be postponed:

for a maximum of 2 months:

if it is likely to cause a disruption in the company's operations due to simultaneous requests from several employees;

if it is impossible to arrange a replacement for the employee during the 4-month notice period, due to the specific nature of the employee's job or a staff shortage in the business's sector of activity;

if the employee belongs to senior management and actively participates in the management of the business;

for a maximum of 6 months if the company employs fewer than 15 employees;

until the end of the season, in case of seasonal activity, if the requested period of leave falls within a period of high seasonal activity.

It is not possible to postpone the leave if:

the state of health of the child (attested by a medical certificate), problems at school, or a behavioural disorder (attested by a certificate delivered by the competent school authorities) requires the presence of the parents;

the employer has already approved the leave;

the employee has not received a reply to their request for leave within 4 weeks of the application;

in the event of a disagreement between employers if the employee works for several employers.

If the second parental leave is postponed, the employer must provide the employee with their decision:

by registered letter with acknowledgement of receipt;

at the latest 4 weeks after the employee's application;

proposing a new start date for the parental leave;

and specifying the reason for the postponement.

The employer must also inform the staff delegation.

If the employer does not submit his decision within the 4-week deadline, the second parental leave is automatically accepted.

If an agreement is reached on the new terms of the leave, the employer completes and signs the application for the parental leave allowance submitted by their employee or apprentice.

If the postponement cannot be agreed upon, the case may be referred to the labour tribunal.

Only then can the salaried worker or the apprentice submit the application to the Children's Future Fund (Caisse pour l'avenir des enfants - CAE).

Parental leave allowance

During paid parental leave, the parent is entitled to a monthly parental leave allowance which replaces the salary and is granted by the Children's Future Fund (Caisse pour l’avenir des enfants - CAE).

The allowance is subject to social security contributions and taxes on the basis of the data on the employee's tax card, on which the CAE appears as the employer.

The Luxembourg Inland Revenue (Administration des contributions directes – ACD) automatically updates the employee's tax card (no action is required from the employee) within an average of 30 working days.

The parental leave allowance can be claimed for 2 years from the end of the month for which it is due.

Applications for parents who are employees

In order to qualify for the parental leave allowance, a parent who has been granted parental leave must submit an application for parental leave allowance, duly certified by the employer and accompanied by the parental leave plan, to the CAE.

The application submitted by the parent to the CAE must be:

submitted to the CAE no later than 15 days following the notification of the application to the employer (for the first parental leave);

submitted to the CAE within 15 days following notification of the employer's decision or, failing that, within 15 days of the expiry of the 4-week period provided for in the event of postponement of the leave by the employer (second parental leave);

for the cross-border worker, accompanied by the bank account number or post office account abroad as well as a bank identification form (RIB);

in case of adoption of a child below the age of 12, accompanied by a certificate issued by the court in the country of residence attesting to the filing of the adoption papers.

Application for self-employed workers

In order to qualify for parental leave, self-employed parents must notify the CAE of the parental leave directly by registered letter with acknowledgement of receipt accompanied by an affidavit:

at the latest 2 months before the start of maternity or adoption leave, for applications for the first parental leave;

at the latest 4 months before the start of parental leave, for applications for the second parental leave;

Amount of the parental leave allowance

The amount of the allowance is calculated on the basis of the average monthly income earned during the 12 months preceding the beginning of the parental leave.

In the event of a change in income after the start of parental leave, the allowance is recalculated.

Each monthly payment is paid by the CAE in the month for which it is due, provided that the application and supporting documents were submitted in a timely manner.

In the case of a pregnancy or an adoption during the parental leave which entitle the same parent to maternity or adoption leave, the new maternity allowance takes precedence over the parental leave allowance. It is calculated on the basis of the data provided for in the initial employment contract of the person concerned.

Loss of entitlement to parental leave allowance

The parental leave allowance is lost if the qualifying conditions are no longer met.

Beneficiary parents must notify the CAE, within one month, of any event that may result in the reduction or loss of their entitlement to the allowance.

If an employee tenders their resignation or if the employment contract is terminated by common agreement between both parties before the parental leave has ended, the termination of the employment contract leads to the termination of the parental leave. The employee must then reimburse the CAE all of the allowances received.

Multiple births or adoptions

In the event of multiple childbirths (e.g. twins) or multiple adoptions, the parental leave is fully granted for each child. The parents must submit an application for parental leave for each child and can choose a different parental leave option for each child.

New birth or adoption during parental leave

Parental leave is interrupted in the event of a new maternity or adoption leave. In this case, the maternity/adoption leave replaces the parental leave, and the remaining duration of the parental leave is added to the new maternity/adoption leave.

If the parent wishes to take parental leave for the new child, subsequent to the maternity or adoption leave, this new parental leave is then carried over, as of right, to the end of the remaining amount of the initial parental leave added to the maternity or adoption leave.

Implementation of the parental leave

Measures to facilitate the reintegration of employees returning from parental leave

In order to facilitate the reintegration of an employee and ensure their employability after their parental leave, the employee may:

take advantage of any continuous-training opportunities offered by the employer during the parental leave;

take part in meetings or events organised during the parental leave.

These measures must be mutuallyagreed upon by the employee and employer at the latest one month before the start of the parental leave through an addendum to the employee's employment contract. However, the employee may put an end these measures at any time without any negative consequences for themselves.

Protection against dismissal

The salaried worker is protected against any form of dismissal with notice:

as of the last day of the deadline for the notification of the leave request;

for the full duration of the parental leave.

This protection is valid from:

2 months and 1 day prior to the start of the maternity/adoption leave, if it is the first parental leave;

4 months and 1 day before the start of parental leave, if it is the second parental leave.

However, the employee is not protected against dismissal with immediate effect for serious misconduct. Termination of the employment contract will then result in the end of the parental leave, and the employee must refund any parental-leave allowances already received.

Annual leave and length of service

Employers are required to:

take account of the duration of parental leave when calculating the employee's length of service and any associated benefits;

defer, in full and within the legal timeframes, any outstanding annual leave at the beginning of the full-time parental leave until the employee returns to work.

On the other hand, an employee will not accrue any new annual leave during the full-time parental leave, unlike in the case of part-time parental leave (leave granted in proportion to the weekly working time) and maternity/adoption leave. During full-time parental leave, the employment contract is put on hold.

End of the parental leave

Returning to work at the end of parental leave

At the end of parental leave, an employee must be reinstated to their job or to a similar job (in terms of pay and qualifications).

The employee who returns to their initial work position after the parental leave has the right to a meeting with their employer. The aim of this meeting is to give the employee the opportunity to ask for a different work schedule and/or work rhythm for a specific period of time which cannot exceed one year starting from the day set for their return to work.

If the request is denied, the employer must justify the decision.

If the employer does not meet these requirements, the employee can claim compensation for damages with the labour tribunal who will determine the amount of damages.

Returning to work before the end of the parental leave

The employee can keep any allowances already received if he/she, as a result of a change of employer, returns to work before the end of the parental leave.

In the event of an early return to work with the same employer and an interruption of parental leave, the compensation received must be reimbursed in full, unless the interruption is justified by reasons beyond the employee's control.

The right to leave ends on the day of return to work and any remaining months of parental leave are lost.

On the other hand, the new employer may also grant a continuation of the parental leave that was begun with the previous employer.

In either case, the employee must first inform the Children's Future Fund (CAE).

Resignation of the employee after the parental leave

At the end of the parental leave, the employee is required to return to his job, except if they decide to terminate their employment contract.

If the employee does not wish to return to work at the end of the parental leave, he or she must inform the employer, by registered letter with acknowledgement of receipt, within a period equal to that which is required in case of resignation.

The notice period to be respected by the employee depends on their seniority of service in the company:

one month if the employee has less than 5 years' continuous service;

two months if the employee has between 5 and 10 years' continuous service;

three months if the employee has at least 10 years' continuous service.

Please be aware that the notice begins:

on the 15th day of the month in which the termination was notified, when the notification is transmitted before the 15th;

on the first day of the month following the month in which the termination was notified, when the notification is sent after the 14th day of the month.

In the absence of resignation notified by registered post with acknowledgement of receipt, the non-resumption of work at the end of the parental leave is a serious misconduct which may justify a dismissal with immediate effect for the employer unless the employee can provide a serious and legitimate justification.

Resignation of the salaried worker before the parental leave has ended

If an employee tenders their resignation or if the employment contract is terminated by mutual agreement between both parties before the parental leave has ended, the termination of the employment contract leads to the termination of the parental leave. The employee must then reimburse the CAE all of the allowances received.

However, if the employee changes employer during the parental leave, the leave may be continued without interruption, provided the new employer has agreed to it.

Death of the child or rejection of the adoption application

A parent must return to work at the latest one month after the death of a child or the refusal of an adoption application. If the employer has hired a person to replace the parent benefiting from parental leave and is unable to offer them employment corresponding to their qualifications and salary level, the parental leave is extended but cannot exceed its initial term.

Change of employer during parental leave

If a parent changes employer during their parental leave, the leave may be continued without interruption provided that:

the new employer approves;

the new employment contract contains the same number of working hours as the initial contract entitling the applicant to parental leave.

a statement from the new employer attesting that the employee can continue the parental leave;

a copy of the new employment contract.

If the employee decides to return to work with the new employer before the end of the parental leave, he/she can keep the compensation paid to date.

Disputes and appeals

Disputes can be taken to:

the labour tribunal in the event of a dispute between an employer and the salaried worker (e.g. in the event of a disagreement on the postponement of the parental leave);

the Board of Directors of the CAE (disputing a refusal), the Social Security Arbitration Tribunal (first resort to dispute the decision of the Board of Directors), then the High Council of Social Security (for appeals) for disputes between the CAE and those claiming compensation.

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